The woman’s employer for 22 years had changed its drug testing policy to test for selected prescription drugs in addition to illegal drugs, according to the Times, and the prescription medication she took for back pain — a narcotic prescribed by her doctor called hydrocodone, a drug her employer considered unsafe — showed up on her drug test.

The Times reports that the woman has sued her former employer for discrimination and invasion of privacy, while the automotive company contends employees on certain medications pose a safety hazard and its employment drug testing policy considered a prescription drug unsafe if its label included a warning against driving or operating machinery. The case is currently in court.

Increasingly, employers are struggling to find ways to address “the growing reliance of Americans on powerful prescription drugs for pain, anxiety, and other maladies” that may indicate that many of these employees report to work “with potent drugs in their systems,” reports the Times.

But issues of ‘security’ and ‘privacy’ seem to be pitted against each other, as employers try to maintain safe work environments through employment drug testing but employees cite privacy concerns and contend that they should not be fired for taking legal medications, especially if for injuries sustained on the job.

Citing data from the results of more than 500,000 drug tests, the Times reports:

The rate of employees testing positive for prescription opiates rose by more than 40 percent from 2005 to 2009, and by 18 percent in 2009 alone.

Workers tested for drugs after accidents were four times more likely to have opiates in their systems than those tested before being hired.

Because of the wide use of prescription drugs in today’s society, employers now face the challenge of setting proper employment drug testing rules about prescription drug use in the workplace to find the right balance between ‘worker security’ and ‘worker privacy’ in order to avoid violating the Americans with Disabilities Act (ADA). According to lawyers with the Equal Employment Opportunity Commission (EEOC), the ADA prohibits employers from asking employees about prescription drug use unless those employees compromise safety or cannot perform their job for medical reasons, the Times reports.

A Law Blog on the Wall Street Journal (WSJ) website asks if there are limits to what the government can ask during background checks for employees of defense contractors and at what point – if any – does a government background check into the drug use history of low-level employees violate the constitutional right to privacy of those employees.

The WSJ Law Blog cites an account from the LA Times in which the U.S. Supreme Court was called upon to ponder this interesting question during a “skeptical hearing” to the 28 Caltech scientists challenging the government’s use of background checks due to the fact that Caltech runs the Jet Propulsion Laboratory under a contract with NASA.

Although the Caltech scientists won earlier at the Ninth Circuit, which held that questions on background checks violated their constitutional right to privacy, the LA Times story indicated most Supreme Court justices were more inclined to uphold the background checks as they explored the limits to what the government should be allowed to ask.

While the Times reported some justices would not close the door to all claims of privacy, the acting U.S. solicitor general urged the justices to rule that the government could ask open-ended questions of its employees and contract workers during background checks. A transcript of the Supreme Court arguments can be found at http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-530.pdf .

However, Employment Screening Resources (ESR) believes it is important to keep in mind that the type of government security background check discussed in the WSJ Law Blog – and by the Supreme Court – is much more in-depth than what private sector employers perform during background checks of their employees.

In the private sector, background checks are done by private companies for private employers, and not the government. Private sector background checks are focused on those things that a person has done in their public lives, such as where they worked, what schools they attended, or public records concerning criminal matters.

According to a recently published final rule in the Federal Register, The U.S. Department of Transportation (DOT) is amending procedures for transportation workplace drug and alcohol testing programs in an effort to create consistency with many new requirements established by the U.S. Department of Health and Human Services (HHS).

Full details of the final rule – which takes effect October 1, 2010 – are available at http://edocket.access.gpo.gov/2010/pdf/2010-20095.pdf. Some of the changes will affect the training of and procedures used by Medical Review Officers (MROs). Highlights of these changes include the following:

DOT now requires drug testing for Ecstasy (Methylenedioxymethamphetamine or MDMA). The initial screening cut-off concentration for MDMA will be 500 ng/ml and the confirmatory cut-off concentration will be 250 ng/ml for MDMA, as well as Methylenedioxyamphetamine (MDA) and Methylenedioxyethylamphetamine (MDEA), drugs that are chemically similar to Ecstasy;

The drug test cutoff concentrations for cocaine have been lowered. The initial screening test cutoff drops from 300 ng/ml to 150 ng/ml, and the confirmatory test cutoff concentration has been lowered from 150 ng/ml to 100 ng/ml;

The drug test cutoff concentrations for amphetamines have been lowered. The initial screening test cutoff has been lowered from 1,000 ng/ml to 500 ng/ml, and the confirmatory drug test cutoff concentration has been lowered from 500 ng/ml to 250 ng/ml; and

Initial drug testing for 6-acetylmorphine (“6-AM,” a unique metabolite of heroin, considered to be definitive proof of heroin use) is now required. Specific rules have been added to address the way in which Medical Review Officers (“MROs”) analyze and verify confirmed positive drug test results for 6-AM, codeine, and morphine.

To ensure the safety of employees and to promote a safety conscious work environment, certain companies require a drug test for all new employees as a condition of employment, and a drug screen subsequent to a reportable traffic accident and a reportable workers compensation injury for current employees in certain occupations.